Counties may
continue to pay benefits to local trial judges, including those who took office
after the Legislature applied a “fix” in response to a prior decision that such
benefits were unconstitutional under conditions then in effect, the Fourth
District Court of Appeal ruled yesterday.

The ruling by
Div. Three is the third appellate decision in nearly a decade of litigation
between taxpayer Harold Sturgeon, represented by Judicial Watch, and Los
Angeles County over its payments to members of the local trial bench.

Judges in other
counties have long complained that their benefits are far less generous than
those paid by Los Angeles County, which include participation in the county’s
“MegaFlex” cafeteria benefits program, along with a “professional development
allowance” and a 401(k) match of up to four percent of the judge’s salary.

Those payments
now total over $57,000 annually, significantly boosting each judge’s state
salary of $189,041, while judges in other counties get less. Justice William
Bedsworth noted yesterday that those in three small counties “receive no
supplemental benefits at all,” but said those disparities can only be remedied
by the Legislature.

Sturgeon I

In Sturgeon
v. County of Los Angeles (2008) 167 Cal.App.4th 630, the court held the
county benefits to be “compensation,” and therefor unconstitutional because
only the Legislature may prescribe compensation for judges.

Lawmakers then
passed SBX2 11, creating Government Code §68220, finding that “[n]umerous
counties and courts established local or court supplemental benefits to retain
qualified applicants for judicial office, and trial court judges relied upon
the existence of these longstanding supplemental benefits provided by the
counties or the court.”

Under that
legislation, counties or courts that were supplementing judges’ salaries as of
July 1, 2008 were required to continue to do so, subject to termination on 180
days’ notice. Judges in office at the time of the termination notice, however,
would be entitled to benefits until the end of their terms, or, at county option,
until they leave the bench.

Sturgeon II

In Sturgeon
v. County of Los Angeles (2010) 191 Cal.App.4th 344, the Fourth District’s
Div. One upheld the new law, rejecting the plaintiff’s claims that the
existence of a county option, and the continuing disparity in benefits, both
rendered the law unconstitutional.

Justice Patricia
Benke described the new law as an “interim measure” that satisfied the
Legislature’s nondelegable duty to prescribe judicial compensation, since it
reflected a state policy and contained adequate safeguards to prevent counties
from adopting means contrary to legislative intent.

Failure to pass
a more “comprehensive response” to trial judge compensation would likely lead
to more litigation, Benke said, predicting that “the Legislature within a
reasonable period of time will act to adopt a uniform statewide system of
judicial compensation.”

The prediction
of more permanent legislative action did not come to pass, and the prediction
of new litigation did. The court, Bedsworth wrote, therefore “must respond to
Cassandra,” whose “punishment for refusing to have sex with Apollo was a ‘gift’
of accurate prophecy accompanied by the curse of having no one listen to her.”

Orange Superior
Court Judge Kirk Nakamura dismissed Sturgeon’s new lawsuit, sustaining a
demurrer without leave to amend. Sturgeon’s motion to transfer the appeal to
Div. One, on the ground that division decided the first two appeals, was
denied.

Bedsworth said
the trial judge was correct in ruling that the passage of time had not rendered
the new law unconstitutional.

“[T]he
Legislature built better than it knew,” the justice said, concluding that while
further legislation may be desirable, it is not constitutionally necessary,
because the law does not delegate compensation decisions to counties.

“Properly
construed, section 68220 requires those counties paying supplemental
benefits as of July 1, 2008, to continue paying them on the same terms and
conditions as were in effect on July 1, 2008, and to pay them to all judges
of the county’s superior court, not just those judges who held office as of
July 1, 2008,” Bedsworth explained. “Counties thus have no discretion under
section 68220 to fix compensation – it has already been fixed by the
Legislature.”

‘Plain, Mandatory
Language’

The jurist
concluded that “[t]he plain, mandatory language” of the statute supported the
county’s position, even though the Legislative Counsel’s Office interpreted the
legislation as applying only to judges who were receiving supplemental benefits
on July 1, 2008. In providing that benefits should continue to be paid to
judges “of a court whose judges received” such payments, lawmakers made “a
painstaking, carefully considered organization of words that illuminates the
content of the statute.”

This “very
unusual and particular phraseology,” he said, “…is not only unambiguous, it is
meticulous and carefully chosen,” and cannot be ignored by the court.

Bedsworth
acknowledged that the court’s interpretation renders as surplusage a sentence
in the legislation reading: “The county is also authorized to elect to provide
benefits for all judges in the county.”

But the canon
imploring courts to avoid treating legislative language as surplusage cannot be
followed, the jurist said, where it would be inconsistent with the clear intent
of the Legislature and would render the legislation unconstitutional under the
first Sturgeon decision.

“As between an
interpretation of a statute that renders it unconstitutional in operation, and
an interpretation that makes it constitutional even though it jettisons a
sentence, we must of course choose the latter,” he said.